U.C.  BERKELEY  LIBRARIES 


IB 


F  NOTICE 


RECENT    OUTRAGES 


COMMITTED  BY 


ISAAC  I.  STEVENS, 


GOVERNOR  OP 


WASHINGTON   TERRITORY. 


The  Suspension  of  the  Writ  of  Habeas  Corpus— the  Breaking  up 
of  Courts,  and  the  Kidnapping  of  Judges  and  Clerks. . 


OLYMPIA,  MAY  17,  1856. 


University  of  California  •  Berkeley 

Purchased  from 

THOMAS  W.  STREETER 
BEQUEST 


NOTICE 


OF   THE 


RECENT  OUTRAGES  IN  WASHINGTON  TERRITORY, 


In  the  latter  part  of  the  month  of  March,  1856,  Lion  A. 
Smith,  Charles  Wren,  Henry  Smith,  John  McLeod,  John 

McField,  Henry  Murry  and  — Wilson,  American  citizens, 

residents  of  the  County  of  Pierce,  and  Territory  of  Washington, 
were  arrested  upon  their  several  land  claims,  in  that  county,  by 
a  detachment  of  volunteers  under  orders  of  Isaac  I.  Stevens, 
Governor  of  said  Territory,  without  process  of  law,  and  without 
any  complaint  or  affidavit  being  lodged  against  them,  charging 
them  with  the  commission  of  any  offence  against  the  law.  They 
were  taken  by  a  guard  to  the  town  of  Olympia,  the  capitol  of 
the  Territory,  detained  there  over  night,  and  then  sent  in  cus- 
tody of  a  guard  to  the  U.  S.  Military  Post  at  Fort  Steilacoom, 
with  a  written  request  of  Governor  Stevens  to  Lieut.  Col. 
Casey,  U.  S.  Army,  commanding  that  post,  to  retain  said  pri- 
soners in  close  confinement,  upon  a  charge  of  treason.  In  the 
early  part  of  April,  William  H.  Wallace  and  Frank  Clark, 
attorneys  at  law,  of  counsel  for  said  prisoners,  started  for 
Penn's  Cove,  Whidby's  Island,  a  distance  of  a  hundred  miles, 
the  residence  of  Hon.  F.  A.  Chenoweth,  U.  S.  District  Judge 
of  the  Third  Judicial  District  of  Washington  Territory,  to  make 
application  for  the  writ  of  habeas  corpus,  to  test  the  legality  of 
such  imprisonment.  The  Governor  having  learned  of  this  mis- 
sion of  justice  and  mercy,  issued  a  proclamation,  without  seal, 
bearing  date  April  30,  1856,  and  in  the  following  language: 

"  Whereas,  In  the  prosecution  of  the  Indian  war,  circum- 
stances have  existed  affording  such  grave  cause  of  suspicion, 
that  certain  evil  disposed  persons  of  Pierce  County,  have 
given  aid  and  comfort  to  the  enemy,  as  that  they  have  been 
placed  under  arrest  and  ordered  to  be  tried  by  a  military  com- 
mission :  And  whereas,  efforts  are  now  being  made  to  with- 
draw, by  civil  process,  these  persons  from  purview  of  the  said 
commission ; 

"Therefore,  as  the  war  is  now  being  actively  prosecuted 
throughout  nearly  the  whole  of  the  said  county,  and  great  injury 
to  the  public,  and  the  plans  of  the  campaign  be  frustrated,  if  the 
alleged  designs  of  these  persons  be  not  arrested ;  1,  Isaac  I. 


(    4     ) 

Stephens,  Governor  of  the  Territory  of  Washington,  do  hereby 
proclaim  MARTIAL  LAW  over  the  said  county  of  Pierce,  and 
do  by  these  presents  suspend  for  the  tim^being,  and  till  further 
notice,  the  functions  of  all  civil  officers  jP-said  county. 

"  Given  under  my  hand  at  Olympia,  this  third  day  of  April, 
eighteen  hundred  and  fifty-six,  and  the  year  of  Independence 
of  the  United  States  the  eightieth.  ISAAC  I.  STEVENS." 

On  being  apprised  of  this  proclamation,  Col.  Casey  informed 
the  Governor,  that  notwithstanding  its  issue,  were  a  writ  of 
habeas  corpus  served  upon  him,  he  would  feel  compelled  to 
obey  its  mandates ;  upon  this,  the  Governor  removed  said  pri- 
soners again  to  Olympia,  out  of  the  county,  where  he  pretended 
to  hold  them  by  the  martial  law  he  had  proclaimed.  In  the 
meantime,  his  honor,  Judge  Chenoweth,  had  issued  a  writ  of 
habeas  corpus,  and  unaware  of  the  existence  of  the  proclama- 
tion. It  is  not  our  purpose  to  criticise  the  intention  of  the 
Governor,  to  defeat  the  service  of  a  writ  after  the  arrest  of 
parties,  defying,  as  it  does,  the  wholesome  spirit  of  that  section 
of  the  Constitution  which  prohibits  the  enactment  of  ex  post 
facto  laws,  for  we  have  learned  to  our  mortification,  that  Con- 
stitutions are  nothing,  law  is  idle,  the  will  of  the  Governor  is 
supreme.  But  we  do  boldly  maintain  the  position  that  if  his 
proclamation  of  martial  law  was  based  upon  public  necessity, 
urgently  demanded  for  the  public  welfare,  the  great  writ  of 
right  still  stood  exempt  from  its  reach,  and  paramount  to  its 
operation.  Truth  compels  us,  however,  to  deny  that  the  procla- 
mation was  necessary,  and  we  need  only  refer  to  the  document 
itself  to  sustain  our  position.  The  preamble  to  said  proclama- 
tion recites  that  "  the  suspected  parties  were  in  custody"  their 
evil  designs,  had  they  any,  had  been  thwarted,  and  they  were 
now  in  a  position  that  they  could  no  longer  "  frustrate  the  cam- 
paign.'7 Nor  does  it  appear  that  any  effort  was  made  to  rescue 
the  prisoners  by  force;  nothing  is  alleged,  save  that  by  counsel, 
they  attempted  to  secure  what  the  national  Constitution  guaran- 
tees to  every  citizen. 

The  writ  of  habeas  corpus  issued  by  order  of  Judge  Cheno- 
weth never  was  served,  because  the  prisoners  had  been  trans- 
ferred by  Gov.  Stevens  out  of  Judge  Chenoweth 's  district. 

Nothing  further  was  done  until  the  first  Monday  in  May, 
1856,  when  by  a  law  of  this  Territory,  the  term  of  the  District 
Court  for  the  County  of  Pierce,  was  to  be  holden.  We  quote 
from  the  statement  made  by  the  bar  of  that  district,  the  detail 
of  the  outrages  committed  by  the  Executive  during  that  week : 

"  The  United  States  Judge,  assigned  to  this  Judicial  District, 
being  detained  at  home  by  severe  illness,  at  the  time  when  by 


(    5    ) 

law  the  term  of  the  District  Court  was  to  be  held,  the  Hop, 
Edward  Lander,  Chief  Justice  of  this  territory,  who  resides  in 
the  adjoining  district,  at  the  special  written  request  of  Hon. 
Judge  Chenoweth,  undertook  to  hold  said  court,  and  on  Monday 
the  5th  May  inst.,  arrived  at  Steilacoom  and  opened  the  Court 
in  due  form.  Having  been  informed,  however,  on  his  way  to 
the  Court  by  Lieut.  Col.  B.  F.  Shaw,  commanding  a  volunteer 
force  under  authority  of  the  Governor  of  this  territory,  that  if 
he  attempted  to  hold  said  Court,  he  would  be  forcibly  pre- 
vented. Judge  Lander,  in  order  to  prevent  a  collision  between 
executive  and  judicial  authority,  suggested  that  he  would  sim- 
ply open  and 'adjourn  the  Court  until  Wednesday,  that  the 
Governor  might  be  advised  to  withdraw  his  proclamation. 

"  About  three  days  previous  to  opening  court,  Col.  Shaw,  com- 
manding the  volunteer  forces,  who  had  received  written  instruc- 
tions from  Gov.  Stevens  to  enforce  martial  law  until  further 
orders,  being  directed  at  the  same  time  to  inform  him  imme- 
diately if  in  his  opinion  it  was  no  longer  necessary,  had  written 
by  express  to  the  Governor,  stating  that  no  occasion  existed  in 
the  county  for  its  continuance,  informing  him  that  important 
business  was  to  be  transacted  before  the  court,  and  recom- 
mended that  in  consequence,  the  proclamation  be  abrogated. 
Judge  Lander,  now  himself,  wrote  to  Governor  Stevens,  inform- 
ing him  of  the  course  he  had  taken ;  that  there  were  important 
causes  to  be  tried  before  the  court,  one  of  which,  the  suit  of  the 
U.  S.  vs.  The  Former  Collector  of  Puget  Sound,  ought  to  be 
tried ;  that  there  was  imminent  danger  of  a  collision  between 
the  civil  authorities  and  the  military,  and  recommending  that. 
martM  law  be  at  once  abrogated,  especially  as  the  present 
condition  of  the  county  seemed  not  to  require  it. 

"In  reply,  Governor  Stevens,  on  the  6th  inst,  while  declining 
to  withdraw  his  proclamation,  suggested  that  Judge  Lander 
adjourn  his  court  to  the  first  Monday  in  June,  and  informed  him 
that  he  had  examined  the  law,  and  found  no  difficulty  in  his 
adjourning  from  any  time  to  the  next  term  of  court. 

"Upon  the  receipt  of  this  information,  Judge  Lander  having 
done  his  duty  as  a  citizen,  in  endavoring  to  prevent  the  expected 
collision,  proceeded  to  fulfill  those  of  his  judicial  office  by  open- 
ing court  at  the  appointed  time,  accompanied  by  the  Clerk,  U. 
S.  Deputy  Marshal  and.  Sheriff;  he  went  to  the  court  house, 
opened  the  court  by  proclamation  in  usual  form,  and  caused  the 
Grand  Jury  to  be  impanneled  and  sworn.  During  this  time  a 
company  of  volunteers,  (many  of  them  citizens  of  Oregon, 
although  enrolled  in  this  territory,)  drawn  from  Clark  County, 
on  the  Columbia  river,  entered  the  court  room  with  loaded 


(    6     ) 

rifles  and  drew  up  without  the  bar,  another  company  was  kept 
in  reserve  without,  to  assist  them  if  necessary.  Judge  Lander 
then  directed  the  Deputy  Marshal  to  prevent  the  entry  of  any 
armed  men  within  the  bar,  but  the  commanding  officer  having" 
announced  that  he  acted  under  orders  from  Governor  Stevens, 
directed  his  men  to  arrest  the  Judge  and  Clerk.  In  obedience 
to  that  order  they  entered  the  bar,  the  Deputy  Marshal  being 
unable  to  prevent  it,  and  arrested  the  Judge  in  his  seat ;  the 
Judge  stating  that  he  only  succumbed  to  force,  and  declined 
calling  upon  the  posse  comitatus,  because  he  wished  to  avoid 
bloodshed.  Judge  Lander  and  the  Clerk,  J.  M.  Chapman,  were 
then  removed  by  the  military  from  the  court  house,  and  on  the 
same  day  taken  out  of  the  county,  and  carried  to  Olympia. 
The  records  of  the  court,  which  were  at  first  seized,  were  sub- 
sequently returned  to  the  deputy  clerk. 

"  During  this  time  the  citizens  present,  though  manifesting  a 
deep  feeling  of  indignation  at  the  transaction,  refrained  from 
any  disorderly  or  violent  acts.  The  conduct  of  Judge  Lander 
was,  throughout,  dignified,  firm  and  worthy  of  his  high  position, 
and  was,  we  are  satisfied,  dictated  only  by  a  strict  sense  of 
duty." 

On  reaching  Olympia,  the  Chief  Justice  and  Clerk  were  not 
placed  in  confinement,  though  the  former  was  not  officially 
notified  of  his  release  till  the  9th  inst,  and  the  Clerk  on  the 
10th  inst. 

On  Monday  the  12th  of  May,  the  District  Court  of  the  Second 
Judicial  District  commenced,  over  which  Chief  Justice  Lander 
presides,  and  he  proceeded  to  the  discharge  of  that  duty. 

During  that  day,  John  McLeod,  Henry  Smith  and  John 
McField,  three  of  the  parties  arrested  in  Pierce  County,  peti- 
tioned the  Judge,  at  Chambers,  for  a  writ  of  habeas  corpus  to 
be  directed  to  Isaac  I.  Stevens,  Governor,  &c.,  to  bring  them 
and  their  fellow  prisioners  before  the  Chief  Justice,  at  Cham- 
bers, on  Wednesday  ensuing*  This  writ  was  placed  in  the 
hands  of  the  U.  S.  Marshal  and  duly  served  the  same  day  at  7, 
P.  M.  Under  cover  of  that  night  proclamations  of  martial  law 
over  the  County  of  Thurston  were  posted  up,  and  here  is  a  copy 
of  the  remarkable  instrument : 

PROCLAMATION. 

Whereas,  In  the  prosecution  of  the  existing  Indian  war,  it 
became  necessary,  for  the  reasons  set  forth  in  the  proclamation 
of  the  Governor  of  the  Territory  of  Washington,  of  the  3d  of 
April,  to  proclaim  martial  law  in  and  through  Pierce  County,  in 


(     7     ) 

said  territory :  And  whereas,  the  same  efforts  are  now  being  made 
in  the  County  of  Thurston  by  the  issue  of  the  writ  of  habeus 
corpus,  to  take  from  the  purview  of  the  military  commission, 
which  is  ordered  to  convene  on  the  20th  instant,  certain  persons 
charged  with  giving  aid  and  comfort  to  the  enemy :  And  whereas, 
an  overruling  public  necessity  leaves  no  alternative  but  to  per- 
sist in  that  trial  in  order  that  the  military  operations  be  not  ren- 
dered abortive,  and  the  lives  of  the  citizens  needlessly  sacrificed  ; 

Therefore  I,  Isaac  I.  Stevens,  Governor  of  the  Territory  of 
Washington,  do  by  these  presents  proclaim  martial  law  in  and 
throughout  the  County  of  Thurston,  and  do  call  upon  all  good 
citizens  to  see  that  martial  law  is  enforced. 

Given  under  my  hand  at  Olympia,  this  13th  day  of  May,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-six, 
arid  the  year  of  Independence  the  eightieth. 

ISAAC  I.  STEVENS. 

On  the  morning  of  the  13th  May,  a  company  of  volunteers 
rode  into  town,  armed  and  equipped  as  the  law  directs,  with  no 
other  motive  than,  as  is  supposed,  to  help  "good  citizens  see 
that  martial  law  be  enforced,"  and  to  remove  a  portion  of  the 
prisoners  out  of  the  County  of  Thurston.  A  cannon  was  drawn 
up  in  front  of  the  court  house.  On  this  day  the  Governor  did 
not  attempt  to  interrupt  the  court,  though  his  "  guards"  were 
seated  in  front  of  the  executive  office,  and  paraded  occasionally 
up  and  down  the  pavement  before  the  building  wherein  the 
court  was  held. 

Wednesday,  May  14th. — At  the  time  for  the  return  of  the  writ, 
the  Governor  was  respectfully  notified  that  the  Judge  was  at 
Chambers,  and  prepared  to  receive  his  returns  to  the  writ  of 
habeas  corpus.  Refusing  to  come,  he  pleaded  to  the  Marshal 
that  martial  law  had  been  proclaimed,  and  it  suspended  process. 
Petitioners'  counsel  then  asked  for  a  rule  returnable  the  next 
day  at  12,  M.,  upon  the  Governor,  to  show  cause  why  an  attach- 
ment should  not  issue  for  contempt. 

Thursday,  May  15th,  1,  P.  M.— The  Governor  failing  to 
appear  and  make  return  to  the  writ,  on  motion  of  petitioners' 
counsel,  rule  made  absolute,  and  a  writ  of  attachment  issued  to 
bring  Isaac  I.  Stevens  before  the  Hon.  Edward  Lander,  Chief 
Justice,  to  answer  for  a  contempt  in  refusing  to  make  return  to 
the  writ  of  habeas  corpus.  The  Governor  forcibly  resisted  the 
service  of  this  writ,  and  dispatched  a  company  of  volunteers, 
(from  the  Territory  of  Oregon,)  commanded  by  Capt.  Bluford 
Miller,  to  the  house  wherein  Judge  Lander  was  sitting  at 
Chambers,  and,  the  Marshal  being  ordered  to  keep  the  room 


(    8    ) 

clear  of  armed  men,  was  compelled  to  lock  the  door.     While 
the  Marshal  was  engaged  in  making  a  return  to  the  writ,  and  the 
Judge  in  making  the   order  for  an  alias  writ  of  attachment, 
Capt.  Miller  called  upon  the  Judge  to  surrender.     In  the  mean- 
time the  house  was  surrounded  by  armed  men.     The  counsel 
engaged  inside  could  distinctly  hear  the  men  cocking  their  rifles. 
The  Judge  in  this  trying  moment  remained  firm,  cool  and  dis- 
passionate, and  finally,  the  door  was  forced  open  by  the  soldiers, 
the  room  was  filled  with  armed  men,  and  the  Chief  Justice, 
together  with  Elwood  Evans,  acting  clerk  of  the  U.  S.  District 
Court,  of  the  Second  Judicial  District,  was  siezed  and  taken 
down  to  the  executive  office.     In  the  presence  of  a  large  crowd, 
Chief  Justice  Lander  was  offered  his  liberty  on  condition  of 
his  "  giving  his  honor  that  he  would  not  hold  any  court  or  issue 
any  further  process,  until  the  proclamation  of  martial  law  was 
revoked."     This  offer  was  made  by  Capt  Miller,  who  stated  that 
he  did  it  by  the  instruction  of  the  Governor.     Justice  to  Judge 
Lander  requires  that  we  should  give  his  dignified  and  manly 
reply.     "  Tell  Governor  Stevens  for  me,  that  I  will  not  pro- 
mise not  to  do  what  the  law  requires  at  my  hand ;  say  to  him 
that  I  will  do  my  whole  duty,  and  I  trust  he  will  do  his  as  well." 
On  this  answer  he  was  taken  into  custody  and  carried  out  to 
camp  Montgomery,  out  of  the  County  of  Thurston,  out  of  his 
Judicial  District,  pending  a  regular  term  of 'Court — the  Grand 
Jury  being  yet  in  session,  important  cases  undisposed  of,  and 
much  unfinished  business  on  the  docket, — making  the  second 
time  which  Governor  Stevens  has  interrupted  the  Courts,  and 
kidnapped  the  Court  and  its  clerk.     The  clerk  was  then  uncon- 
ditionally released. 

The  above  is  a  plain  unvarnished  statement  of  the  facts  of  the 
case,  and  on  them  we  base  the  following  charges  against  Gov. 
Stevens,  with  our  reasons  for  so  doing : 

I. — He  has  violated  his  oath  of  office,  which  INTER  ALIA,  was  to 
support  the  Constitution  of  the  United  States. 

1.  In  this,  that  he  has  attempted  to  suspend  the  writ  of  habeas 
corpus,  which,  by  said  Constitution  can  only  be  suspended  by 
Congress,  and  then  only  in  cases  of  invasion  and  rebellion,  when 
the  public  safety  require  it. — Vide  Cons.  U.  S.  Art.  i.  Sec.  9. 

2.  In  this,  that  he  has  arrested  citizens,  and  deprived  them 
of  their  liberty  without  process  of  law. — Vide  Cons.  U.  S.  Jirt. 
v.  Amendments. 

3.  In  this,  that  he  has  held  persons  to  answer  for  an  infamous 
and  capital  crime  without  any  complaint  or  charge  being  pre- 


(     9     ) 

ferred  against  them,  and  without  a  presentment  or  indictment 
of  a  Grand  Jury  being  made.. — Vide  Cons,  of  U.  S.  Art.  v. 
Amendments. 

4.  In  this,  that  the  has  broken  into  houses  of  citizens  with- 
out the  issue  of  any  warrant  therefor,  and  seized  persons  and 
taken  them  into  custody. — Vide  Cons.    U.  S.  Art.  iv.  Amend- 
ments. 

5.  In  this,  that  he  has  deprived  American  citizens  of  the 
right  of  trial  by  jury  of  the  district  wherein  the  alleged  crime 
was  committed,  and  created  a  court  of  his  own  not  known  to  or 
recognized  by  the  law. — Vide  Cons.  U.  S.  Art.  iii.  Sec.  2 ;  U 
Art.  vi.  Amendments. 

6.  In  this,  that  he  has  charged  men  with  committing  treason. 
which  is  only  cognizable  by  a  United  States  Court,  and  ordered 
their  trial  by  a  tribunal  of  his  own  creation. — Vide  Cons.  U.  S. 
Art.  iii.  Sec.  3. 

7.  In  this,  that  he  has  defied  and  abrogated  the  supreme  law 
of  the   land,   rendered   null  and   void    the    Constitution    of  the 
United  States,   and  erected   a  military  despotism  with  nothing 
to  guide  it  but  his  own  will. — Vide  Cons.  U.  S.,  Art.  vi. 

II. — He  has  acted  in  violation  of  the  Organic  Act  creating  the 
Territory  of  Washington. 

1.  In  this,  that  he  has  suspended   the  writ  of  habeas  corpus. 
[See  ordinance  of  1787,  which  by  Act  of  Congress,  bearing  date 
August  14th,  1848,  entitled  "An  Act  to  establish  the  territorial 
government  of  Oregon,"  was  extended  in  its  application  to  what 
is  now  Washington  Territory,  and   reaffirmed  in   the  organic  act 
of  this  Territory.] 

2.  In  this,  that  he  has  deprived   citizens  of  their  liberty  and 
property  without  process  of  law,  and  without  compensation. — 
Ibid. 

3.  In  this,  that  he  has  deprived  citizens  of  the  territory  of  a 
right  of  trial  by  jury. — Ibid. 

III. — He  has  violated  and  set  at  defiance  the  laws  of  Washington 

Territory. 

1.  In  this,  that  he  has  suspended  and  interrupted  the  terms  of 
the  District  Courts  of  the  Counties  of  Pierce  and-Thurston. —  Vide 
"An  Act  to  define  the  judicial  district  of  Washington  Territory,'1 
Laws  W.  T.,  1854,  p.  448. 

2.  In  this,  that  he  has  held  in  custody  persons  not  charged 
with   any  offence,  and  without  a  complaint  filed. — Vide  Crim. 
Prac.  Laws  W.  T.,  Ses.  1854,  Passim. 


(     10     ) 

3.  In  this,  that  he  has  violated  the  provision  of  law  whereby 
"  Every  person  restrained  of  his  liberty,  under  any  pretence 
whatever,  may  prosecute  a  writ  of  habeas  corpus  to  inquire  into 
the  causes  of  the  restraint."— Fade  Sec.  434  "  Of  Jin  Act  to 
regulate  the  practice  in  civil  actions"  p.  212,  Laws  W.  T., 
Ses.  1S54. 

It  may  be  proper  here  to  pay  a  passing  notice  to  the  great  writ 
of  habeas  corpus,  to  suspend  which,  the  flagrant  outrages  herein 
enumerated  against  liberty,  property,  privilege,  right,  law  and 
justice,  have  been  perpetrated.  This  great  writ,  long  the  bril- 
liant peculiarity  of  the  British  Constitution,  received  the  royal 
assent  of  Charles  II.  of  England,  on  the  26th  of  May,  1679. 
With  it  came  the  abolition  of  the  Star  Chamber,  and  the  eman- 
cipation of  the  press.  Personal  liberty  could  not  be  sacrificed 
without  a  chance  of  investigation,  and  monarchy  was  indeed 
limited.  History  teaches  that  it  was  held  sacred  by  our  colonial 
ancestors,  and,  by  their  descendants,  engrafted  as  one  of  the 
dearest  personal  rights  upon  our  national  constitution,  the  con- 
stitution and  bill  of  rights  of  every  state  in  the  Union,  upon  the 
ordinance  of  1787,  and  with  it  carried  into  every  territorial 
government  erected  north  and  west  of  the  Ohio.  Eminent 
jurists  and  statesmen  have  written  in  its  praise,  and  it  may  not 
be  out  of  place  to  give  some  of  those  views. 

The  great  Jefferson  frequently  declared  himself  upon  this  sub- 
ject. He  was  in  favor  "of  the  eternal  and  unremitting  force  of 
the  habeas  corpus  laws."  On  another  occasion  he  inquires, 
"  Why  suspend  the  writ  of  habeas  corpus  in  insurrections  and 
rebellions?  If  the  public  safety  requires  that  the  government 
should  have  a  man  imprisoned  on  less  probable  testimony  in 
those,  than  other  emergencies,  let  him  be  taken  and  tried,  retaken 
and  retried,  while  the  necessity  continues,  only  giving  him 
redress  against  the  government  for  damages."  And  now  stands 
out  the  glaring  fact  to  the  world,  that  never  till  the  instance  we 
now  record,  has  the  writ  been  suspended.  One  instance  occurs, 
the  Burr  rebellion,  when  the  suspension  was  asked  for  and  the 
United  States  House  of  Representatives,  though  asked  to  pass 
said  bill  by  no  less  a  personage  than  the  immortal  Jefferson, 
refused  so  to  do  by  the  overwhelming  vote  of  113  to  19,  and 
that  too  on  a  motion  to  reject  the  bill.  It  is  idle  to  quote  the 
commentaries  of  Kent,  Story  and  others,  on  this  interesting  sub- 
ject. The  current  of  authority  runs  one  way,  all  speak  of  it  as 
the  great  writ  of  right  grantable  ex  merito  justitia,  to  the 
humblest  citizen. 

But  one  case  is  so  apposite,  presenting  features  so  similar,  that 
we  cannot  forbear  to  quote  it  at  length.     It  is  in  the  matter  of 


(  11  ) 

Samuel  Stacy,  Jr.,  and  found  reported  at  length  in  10  Johnson's 
Reports,  p.  327.  Stacy  was  arrested  on  a  charge  of  treason,  by 
order  of  Commodore  Chauncy,  and  by  him  had  been  delivered 
into  the  hands  of  Gen.  Morgan  Lewis,  in  command  at  Sackett's 
Harbor,  in  the  month  of  July,  1813.  On  the  21st  of  July  the 
writ  of  habeas  corpus  was  issued,  to  which  Gen. .Lewis  returned 
he  was  not  in  his  custody  ;  accompanying  which  was  a  return  of 
the  Provost  Marshal,  that  he  held  such  prisoner  by  the  order 
of  Gen.  Lewis. 

In  discussing  the  question  as  to  the  propriety  of  issuing  an 
attachment  without  first  granting  a  rule  to  show  cause  why  it 
should  not  issue  for  the  contempt  committed  by  Gen.  Lewis,  in 
thus  making  an  evasive  return,  Chief  Justice  Kent  says: 

"  This  is  a  case  which  concerns  the  personal  liberty  of  the 
citizen.  Stacy  is  now  suffering  the  rigor  of  confinement  in  close 
custody,  at  this  unhealthy  season  of  the  year,  at  a  military  camp, 
and  under  military  power.  He  is  a  natural  born  citizen  residing 
in  this  state.  He  has  a  numerous  family  dependant  upon  him 
for  their  support.  He  is  in  bad  health,  and  the  danger  of  a 
protracted  confinement  to  his  health,  if  not  to  his  life,  must  be 
serious.  The  pretended  charge  of  treason,  (for  upon  the  facts 
before  us  we  must  consider  it  a  pretext,)  without  being  founded 
upon  oath,  and  without  any  specification  of  the  matters  of  which 
it  might  consist,  and  without  any  color  of  authority  in  any 
military  tribunal  to  try  a  citizen  for  that  crime,  is  ONLY  AGGRA- 
VATION OF  THE  OPPRESSION  of  the  confinement.  It  is  the  indis- 
pensable duty  of  this  court,  and  one  to  which  every  inferior 
consideration  must  be  sacrificed,  to  act  as  a  faithful  guardian  of 
the  personal  liberty  of  the  citizen,  and  to  give  ready  and  effectual 
aid  to  the  means  provided  by  law  for  its  security.  One  of  the 
most  valuable  of  those  means  is  this  writ  of  habeas  corpus,  v)hich 
has  justly  been  deemed  the  glory  of  the  English  law,  and  the 
Parliament  of  England,  as  well  as  their  courts  of  justice,  have, 
on  several  occasions,  and  for  the  period,  at  least,  of  the  two  last 
centuries,  shown  the  utmost  solicitude,  not  only  that  the  writ 
when  called  for  should  be  issued  without  delay,  BUT  THAT  IT 
SHOULD  BE  PUNCTUALLY  OBEYED.  (See  Brown's  Case,  Cro. 
Zac.  543,  and  the  Stat.  of  16  Car.  J.  C.  10,  S.  8.)  Nor  can  we 
hesitate  in  promptly  enforcing  a  due  return  to  the  writ,  when  we 
recollect  that  in  this  country  the  law  knows  no  superior,  and 
that  in  England,  their  courts  have  taught,  us,  by  a  series  of 
instructive  examples,  to  exact  the  strictest  obedience  to  whatever 
extent  the  persons  to  whom  the  writ  is  directed  may  be  clothed 
with  power,  or  exalted  in  rank.  On  ordinary  occasions  the 
attachment  does  not  issue  until  after  a  rule  to  show  cause;  but 


(    12    ) 

whether  it  shall  or  shall  not  issue  in  the  first  instance,  must 
depend  upon  the  sound  discretion  of  the  court  under  the  circum- 
stances of  each  particular  case.  It  may,  and  it  often  does,  issue 
in  the  first  instance,  without  a  rule  to  show  cause,  if  the  case  be 
urgent  or  the  contempt  flagrant.  On  this  point  the  authorities 
are  sufficiently  explicit. — Rex  vs.  Jones,  Stra.  .185;  Dames  ex. 
dem,  Povey  v.  Doe  2  BL  Rep.  892 ;  Hawk.  Tit.  Attachment,  B. 
2,  C.  22,  S.  1. 

"  If  ever  a  case  called  for  the  most  prompt  interposition  of  the 
court  to  enforce  obedience  to  its  process,  this  is  one.  A  military 
commander  is  here  assuming  criminal  jurisdiction  over  a  private 
citizen— is  holding  him  in  the  closest  confinement,  and  contemning 
the  civil  authority  of  the  state" 

We  will  content  ourselves  with  quoting  one  more  authority. 
We  read  in  Bouvier's  Law  Dictionary,  vol.  i.  p.  626  section  16 — 
"  The  habeas  corpus  can  be  suspended  only  by  authority  of  the 
legislature.  The  Constitution  of  the  United  States  provides  that 
the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended 
unless  when  in  cases  of  invasion  or  rebellion  the  public  safety 
may  require  it.  Whether  this  writ  ought  to  be  suspeuded 
depends  on  political  considerations  of  which  the  legislature  is  to 
decide. — 4  Cranch  101.  The  proclamation  of  a  military  chief, 
declaring  martial  law,  cannot  therefore,  suspend  the  operation  of 
the  law."— I  Harr.  Cond.  Lo.  Rep.  157, 159  ;  3  Mart.  Lo.  R.  531. 

Such  then  is  the  view  we  take  of  the  gross  outrage  committed 
in  attempting  to  suspend  the  writ  of  habeas  corpus,  and  we  can 
arrive  at  no  other  conclusion  thanjthat  the  Governor  is  a  usurper, 
a  tyrant  and  a  despot. 

The  plea  of  ignorance  in  this  case  cannot  avail  him  from  these 
charges.  "  Ignorantia  legis  neminem  excusat."  We  assert  that 
it  was  his  duty  to  know  principles  at  the  basis  of  our  free  insti- 
tutions. A  school  boy  could  not  fail  to  know  them,  and  for  a 
Governor  to  be  so  ignorant,  is  at  once  to  acknowledge  his  unfit- 
ness  for  so  high  a  position. 

Again,  we  charge  him  with  culpable  ignorance  in  asserting  his 
determination  to  try,  by  a  military  commission,  American  citi- 
zens, either  on  a  charge  of  giving  aid  and  comfort  to  the  enemy, 
(defined  by  the  constitution  and  laws  of  the  United  States  to  be 
treason,}  or  as  his  vindication,  dated  May  10th,  which  (see 
appendix)  terms  them  spies.  We  accept  the  issue  as  tendered 
by  that  vindication,  and  publish  it  herewith,  as  corroborating 
all  the  material  averments  made  by  the  bar  in  their  statement, 
published  May  7th,  (which  vide  appendix.)  The  Governor  in 
this  vindication  places  himself  in  an  unfortunate  dilemma.  Should 
he  " persist  in  thistr-^l"  of  these  men  for  giving  aid  and  com- 


(     13    )' 

fort,  the  parties  must  be  cleared  on  a  plea  to  the  jurisdiction,  and 
the  Governer  himself  takes  these  men  "  out  of  the  purview  of 
the  military  commission"  a  court  we  do  not  understand,  how 
composed  we  know  not,  by  what  authority  convened  we  cannot 
learn.  It  seems  to  be  a  "  pet  "  of  the  Governor,  being  recited  in 
every  document  coming  from  the  executive  office  and  exhibited 
to  the  world.  If  the  charge  made  by  the  Governor  be  treason, 
then  we  assert,  he  becomes  the  evil  disposed  person  who  would 
take  his  victims  out  of  that  purview.  For  though  the  constitu- 
tion may  be  obsolete  in  this  territory,  it  cannot  be  forgotten  that 
it  does  clearly  establish  the  tribunal  by  which  such  offences  must 
be  tried,  and  guarantees  to  the  party  charged  therewith,  a  trial 
by  a  jury  of  twelve  of  his  peers  from  the  district  wherein  the 
overt  act  was  committed,  if  such  district  be  legally  defined.  We 
therefore  maintain  that  Pierce  County,  in  the  Third  Judicial  Dis- 
trict, was  the  proper  venue  of  said  action,  and  we  charge  upon 
Governor  Stevens  that  if  he  had  evidence  of  the  guilt  of  these 
men,  and  broke  up  by  force  the  only  tribunal  capable  of  trying 
them,  and  thus  prevented  their  just  punishment,  he  is  guilty  of  a 
gross  dereliction  of  duty,  requiring  the  utmost  censure,  and  so  far 
as  the  effects  thereof  are  concerned,  cannot  claim  to  be  much 
better  than  an  "accessory  after  the  fact." 

Let  us  take  now  the  other  horn  of  the  dilemma  presented  by 
the  Governor's  own  vindication,  and  see  how  much  better  off 
he  becomes.  He  converts  them  into  a  band  of  spies.  Let  us 
look  at  this  a  moment.  Who  is  a  spy?  A  spy  is  de"ned  by 
an  act  of  Congress  as  being  an  alien  enemy.  He  cannot  be  a 
citizen  of  the  United  States  nor  one  owin%  allegiance  thereto. 
(Vide  vol.  ii.  Stat.  at  large,  L.  &  B.  ed..  p/371.)  Who  are  the 
parties  arrested  ?  The  proclamation  and  vindication  calls  them 
"  persons  resident  in  Pierce  County"  Did  they  not  owe  alle- 
giance to  the  United  States  ?  Can  a  man  living  on  his  own 
farm  be  a  spy  ?  What  nonsense  !  But  these  men  are  voters, 
all  of  them — qualified  electors:  Some  of  them  have  held,  and 
are  now  holding  responsible  county  offices.  Several,  if  not  all, 
have  completed  their  naturalization.  About  their  allegiance 
being  due  to  the  United  States,  there  is  not  a  shadow  of  a  doubt. 
If  guilty  as  charged,  they  cannot  be  spies ;  they  must  be  trai- 
tors. We  cannot  better  illustrate  this  position  than  by  citing 
the  case  of  Elijah  Clark,  the  spy,  which,  see  3d  vol.  Niles' 
Register,  p.  294,  et  seq.  The  facts  of  that  case  are  briefly,  that 
Elijah  Clark  was  tried  at  a  General  Court  Martial,  convened  at 
Buffalo,  in  August,  1812.  He  was  convicted  of  being  a  spy 
and  sentenced  to  be  hung.  In  the  progress  of  the  trial  it 
appeared  that  Clark  was  a  native  born  citizen  of  the  United 


'(    14    ) 

States,  though  then  residing  in  Canada.  Maj.  Gen.  Hall  de- 
clined to  approve  the  sentence  of  the  court  martial,  "  until  the 
pleasure  of  the  President  of  the  United  States  can  be  known 
thereon." 

James  Madison,  one  of  the  distinguished  authors  of  our  Na- 
tional Constitution,  was  then  the  President,  and  his  opinion  on 
the  question  submitted  to  him,  was  as  follows : 

OPINION  OF  THE  PRESIDENT. 

WAR  DEPARTMENT,  October  20,  1812. 

SIR: — The  procedings  and  sentence  of  the  General  Court 
Martial,  which  was  held  in  the  case  of  Elijah  Clark,  conform- 
able to  your  orders  of  the  1st  of  August  last,  and  which  were 
by  you  transmitted  to  this  department,  have  been  received  and 
laid  before  the  President.  I  have  now  the  honor  to  inform  you 
that  said  Clark  being  considered  a  citizen  of  the  United  States, 
and  not  liable  to  be  tried  by  a  Court  Martial  as  a  spy,  the  Pre- 
sident is  pleased  to  direct  that  unless  he  should  be  arraigned 
by  the  Civil  Court  for  treason,  or  a  minor  crime,  under  the 
laws  of  the  State  of  New  York,  he  must  be  discharged. 
Very  respectfully,  I  have  the  honor  to  be,  sir, 

Your  obedient  servant,  W.  EUSTIS. 

MAJ.  GEN.  A.  HALL,  Niagara. 

So  much  for  the  question  as  presented  by  the  Governor. 
Take  either  of  his  positions,  and  he  clearly  defeats  the  object 
for  which  he  pretends  to  have  issued  his  proclamation.  Let  us 
now  inquire  into  the  character  of  the  jurisdiction  over  persons, 
under  martial  law  when  legitimately  in  force.  What  is  mar- 
tial law  ?  It  is  the  code  established  for  the  government  of  the 
army  and  navy  of  the  United  States.  (Vide  Bouvier's  Law 
Diet.,  vol.  ii.  p.  10,  Tit.  Law, 'Martial.)  Who  are  amenable 
to  it?  1.  The  army  and  navy  of  the  United  States.  -  2.  The 
militia  when  called  into  actual  service.  A  private  citizen  is 
not  amenable  to  martial  law.  His  arrest  and  trial  by  the  mili- 
tary power  is  trespass.  The  doctrine  is  thus  laid  down  in  Bou- 
vier,  vol.  ii.  p.  10,  under  Tit.  Law,  Martial.  "  A  military  com- 
mander has  not  the  power  by  declaring  a  district  to  be  under 
martial  law,  to  subject  all  the  citizens  to  that  code."  And 
cites  7  Mart.  (Lo.)  531 ;  Hale's  Hist.  C.  L.  31;  1  Bl.  Com.  413; 
Tytler  on  Military  Law ;  Ho.  on  C.  M.  •  McArthurs  on  C.  M. ; 
Rules  and  Articles  of  War,  Art.  64,  et  seq. :  2  Story's  Laws  U. 
U.  S.  1000. 


(   is   ) 

And  the  question  is  fully  and  ably  discussed,  in  the  case  of 
Smith  vs.  Shaw,  12  Johnson's  Reps.  p.  257,  et  seq.  Smith, 
plaintiff  in  error,  appealed  from  a  judgment  of  damages  in  the 
court  below,  given  under  the  following  circumstances.  Smith, 
the  defendant  below,  was  an  officer  of  the  army,  in  command  at 
Sacket's  Harbor,  and  held  in  custody  Shaw,  who  brought  an 
action  of  damages  for  trespass.  Smith  pleaded  in  justification, 
that  Shaw  was  a  spy  lurking  about  camp,  and  as  such  was  com- 
mitted by  the  provost  guard,  and  that  said  offence  was  cogni- 
zable by  a  court  martial.  The  Chief  Justice  in  giving  the  opi- 
nion of  the  Supreme  Court,  affirming  the  judgment  of  the  court 
below,  said — "  None  of  the  offences  charged  against  Shaw  were 
cognizable  by  a  court  martial,  except  that  which  related  to  his 
being  a  spy,  and,  if  he  was  an  American  citizen,  he  could  not 
be  charged  with  such  an  offence.  He  might  be  amenable  to 
the  civil  law  for  treason,  but  could  not  be  punished  under  mar- 
tial law  as  a  spy.  There  was,  therefore,  a  want  of  jurisdiction 
either  of  the  person  or  of  the  subject  matter,  as  to  all  the 
offences  alleged  against  the  plaintiff.  That  want  of  jurisdiction 
renders  the  proceedings  void,  and  makes  the  parties  procuring 
them  all  trespassers."  Here,  then,  the  principle  is  established, 
that  a  citizen  cannot  be  amenable  to  martial  or  military  law, 
without  he  is  legitimately  under  its  jurisdiction,  and  an  arrest 
by  a  military  officer  of  a  citizen  is  a  trespass.  It  is  not  our 
province  to  say  that  Governor  Stevens  might  not  have  exercised 
the  right  as  commander-in-chief  of  the  militia  of  this  territory  to 
have  called  out  said  militia,  and  made  them  amenable  to  law ; 
but,  failing  to  do  that,  his  assumed  title  of  commander-in-chief, 
carried  with  it  no  justification  for  the  gross  outrages  and  tres- 
passes upon  private  rights,  of  which  he  has  been  guilty  in  this 
territory. 

We  may  be  permitted  to  sum  up  the  grievances  to  which  the 
people  of  this  territory  have  been  subjected,  by  the  acts  of  its 
present  Executive.  In  doing  so  we  cannot  fail  to  observe  the 
peculiar  similarity  of  them  with  several  of  the  grievances 
recited  as  good  cause  for  redress,  when  George  III.  imposed 
them  on  fhe  Thirteen  Colonies. 

Was  it  true  in  1776,  as  Jefferson  wrote,  "  when  a  long  train 
of  abuses  and  usurpations,  pursuing  invariably  the  same  object, 
evinces  a  design  to  reduce  them  under  absolute  despotism,  it  is 
their  right,  it  is  their  duty"  to  repudiate  such  government. 
Can  an  American  deny  the  sacred  justice  of  that  war  which  was 
waged,  among  other  reasons,  because  a  despot  "  deprived  us  in 
many  cases,  of  the  benefits  of  trial  by  jury.  .Obstructed  the 
administration  of  justice,  erected  a  multitude  of  new  offices,  and 


(     16     ) 

called  hither  swarms  of  officers  to  harass  our  people  and  eat 
out  their  substance,  affected  to  render  the  military  independent 
of,  and  superior  to  the  civil  power — took  away  our  charters, 
(and  what  better  charter  than  the  right  to  habeas  corpus?)  abo- 
lished our  most  valuable  laws,  and  altered  fundamentally  the 
form  of  our  government." 

Has  eighty  years  growth  and  vigor,  secured  by  the  mainte- 
nance of  the  truths  of  that  sublime  instrument,  taught  us,  the 
descendants,  of  those  great  missionaries  of  civil  and  constitu- 
tional freedom,  that  the  people  have  no  rights,  that  absoluteism 
and  despotism  are  again  to  prevail,  and  every  thing  peculiar 
to  American  institutions  at  once  be  blotted  from  our  national 
character  ? 

In  conclusion,  a  sense  of  duty  we  own  to  Chief  Justice  Edward 
Lander,  who  has  twice  been  taken  into  that  most  offensive  of  all 
styles  of  arrest,  that  of  being  forced  to  yield,  in  the  exercise  of 
his  judicial  functions  to  an  armed  force,  prompts  us  again  to  ten- 
der our  sympathies.  He  has  done  every  thing  he  could  to 
maintain  the  supremacy  of  the  law,  and  the  dignity  of  the 
bench.  Yielding  only  when  overwhelmed  by  the  soldiery  of 
the  Executive,  his  last  judicial  acts  have  been  to  order  the  pun- 
ishment due  to  such  outlaws,  for  their  contempt  in  invading  the 
halls  of  justice,  to  protest  firmly  against  the  despotism  of  a  petty 
military  tyrant,  whose  day  is  now.  We  fearlessly  make  the 
issue  on  this  great  question,  and  we  implore  the  national  gov- 
ernment to  redress  our  grievances  and  shield  us  from  the  des- 
potism under  which  we  live.  Our  courts  are  powerless,  private 
rights  are  at  an  end,  the  constitution  is  subverted,  civil  process 
is  paralyzed,  to  ask  for  process  guarantied  us  by  law,  is  cause 
for  arrest,  the  highest  judicial  functionary  of  our  territory  is 
now  a  prisoner,  because  he  dared  to  issue  a  writ  of  habeas  cor- 
pus at  the  petition  of  five  of  Governor  Stevens'  victims. 

Can  this  document  better  end  than  by  asserting  to  the  world, 
that  our  territory  is  now  in  such  a  condition,  that  soldiers  are 
not  needed  to  fight  an  enemy,  but  their  leisure  is  devoted  to 
interrupting  courts  of  justice,  becoming  jailors  to  judges  and 
clerks  thereof,  who  but  perform  their  legitimate  public  duty. 
Such  is  the  "  great  OVERRULING  PUBLIC  NECESSITY"  justifying 
the  proclamation  of  'martial  law. 

W.  H.  WALLACE,  C.  C.  HEWITT, 

ELWOOD  EVANS,  FRANK  CLARK. 

B.  F.  KENDELL, 


PROCEEDINGS 


MEETING  OF  THE  BJR,  THIRD  JUDICIAL  DISTRICT, 

WASHINGTON  TERRITORY, 


ON    THE    ARREST    OF   THE 


Hon,  Edward  Lander,  Chief  Justice  of  said  Territory,  and 
John  M.  Chapman,  Clerk  of  the  District  Court, 


BY  AN  ARMED  FORCE, 


UNDER   ORDERS   OP 


GOVERNOR  ISAAC  I.  STEVENS. 


.    TOGETHER  WITH  THE 


PROCEEDINGS  OF  A  MASS  MEETING  OF  CITIZENS  OF  PIERCE  CO,,  W,  T. 


STEILACOOM,  MAY  7,  1856. 


I  J;~  A.-U  r.'irf  ri       ':  <  /:,  W 


NOTE. 

On  the  7th  day  of  May,  1856,  the  Hon.  Edward  Lander,  Chief  Justice 
of  Washington  Territory,  and  John  M.  Chapman,  Esq.,  the  Clerk  of  the 
District  Court  of  the  United  States  of  the  Third  Judicial  District,  were 
forcibly  arrested  in  the  Court  House  at  Steilacoom,  W.'T.,  while  engaged 
in  holding  a  United  States  District  Court  for  the  County  of  Pierce,  by  a 
volunteer  force,  acting  under  instructions  from  Gov.  I.  I.  Stevens,  and 
carried  under  guard  to  Olympia,  the  seat  of  the  Territorial  Government. 


MEETING  OF  THE  BAR. 


Immediately  upon  the  removal  of  Hon.  Edward  Lander  and 
J.  M.  Chapman,  Esq.,  from  the  District  Court  Room,  Col.  Wil- 
liam H.  Wallace  requested  the  members  of  the  bar  to  remain. 
Those  in  attendance,  consisting  of  Messrs.  Wallace,  Gibbs,  Clark, 
Pease,  Hewitt,  Murden,  Kendall  and  Evans,  on  motion  organized 
by  the  appointment  of  William  H.  Wallace,  Esq.,  chairman,  and 
George  Gibbs,  secretary. 

B.  F.  Kendall,  Esq.,  being  called  upon,  stated  the  objects  of 
the  meeting  to  be  a  consideration  of  the  extraordinary  proceedings 
of  the  arrest  of  the  Judge  and  Clerk  by  an  armed  force,  acting 
under  instructions  of  Gov.  Isaac  I.  Stevens,  and  under  pretext  of 
a  proclamation  of  martial  law  over  the  county  of  Pierce.  Mr. 
Kendall  on  the  conclusion  of  his  remarks,  moved  the  appointment 
•  of  a  committee  of  three  to  draft  resolutions  expressive  of  the 
sense  of  the  bar,  at  this  outrage  against  law  and  judicial  author- 
ity. The  motion  was  adopted  and  Messrs.  Gibbs,  Evans  and 
Pease,  were  placed  upon  said  committe. 

On  motion,  the  chairman  of  the  meeting  was  added  to  the  com- 
mittee, and  the  meeting  then  adjourned  until  2,  P.  M.,  of  the 
same  day. 

ADJOURNED  MEETING. — Accordingly  at  2,  P.  M.,  the  members 
of  the  bar  again  met,  when  the  chairman  of  the  committee  on 
resolutions,  made  the  following  report : 

A  meeting  of  the  bar  has  devolved  upon  this  committee  the 
task  of  giving  expression  to  the  sentiments  entertained  by  that 
body,  of  the  gross  outrage  this  day  inflicted  upon  the  court  and 
bar  of  this  district,  by  the  exercise  of  military  power  over 
civil  authority. 

This  day  marks  an  era  in  the  territorial  history.  For  the 
first  time  in  the  annals  of  our  country,  does  the  exhibition  present 
itself,  of  an  armed  force  marching  into  a  Court  of  Justice,  and 
while  the  presiding  Judge  thereof  is  in  the  exercise  of  judicial 
authority,  the  court  is  overawed,  its  Judge  taken  from  the  bench, 
its  Clerk  arrested,  the  records  seized,  and  they  are  removed  by  an 
armed  force  out  of  the  county,  in  which  by  law,  the  court  was  to 
be  held.  In  view  of  these  circumstances,  we  deem  it  our  solemn 
duty  to  make  a  statement  of  the  facts,  submitting  it  with  con- 
fidence to  the  judgment  of  the  world. 

-    '  ••*• 


(    20    ) 

A  war  existing  against  Indian  murderers  and  marauders  in  this 
territory,  it  would  have  been  a  subject  of  gratulation,  if  the  gal- 
lant volunteers  in  its  service  had  been  employed  in  punishing 
those  Indians,  rather  than  in  sustaining  lawless  violence,  and  in 
the  infliction  of  outrages  upon  our  courts  and  people.  For  so 
violent  an  assumption  of  power,  we  conceive  that  some  little  basis 
of  reason  should  be  found  to  justify  it.  But  it  becomes  our  duty 
to  assert  that  no  such  reason  exists,  and  that  the  proclamation  of 
martial  law  was  unnecessary,  inexpedient,  illegal  and  void :  to 
sustain  which  declaration  the  following  statement  of  facts  is  con- 
fidently relied  upon.  It  is  our  wish  to  treat  this  subject,  not  in  a 
spirit  of  excitement,  although  that  would  be  fully  justified  by  the 
circumstances,  but  with  coolness  and  moderation.  Satisfied  as  we 
are  that  the  bare  statement  of  the  facts  is  sufficient,  we  need  no 
appeal  to  passion  or  predjudice. 

Several  citizens  of  Pierce  county,  one  of  the  most  populous  in 
the  territory,  who  had  been  ordered  in  from  their  claims  to  the 
town  of  Steilacoom  on  suspicion  of  intercourse  with  the  hostile 
Indians,  and  had  subsequently  returned  to  their  homes,  were 
arrested  without  process  of  law,  in  the  latter  part  of  March,  by 
a  force  of  volunteers  acting  under  direction  of  Gov.  Stevens,  and 
having  been  first  carried  to  Olympia,  in  the  county  of  Thurston, 
were  by  the  Governor  remitted  to  the  military  post  of  Fort  Steil- 
acoom, with  request  to  the  commanding  officer,  to  detain  them 
on  a  charge  of  treason.  Col.  Casey  having  replied  that  he  could 
not  hold  them  in  defiance  of  civil  authority,  an>l  the  persons 
arrested,  having  sent  to  the  nearest  Judge,  who  resided  in  Island 
county,  a  distance  of  about  a  hundred  miles,  for  a  writ  of  habeas 
corpus,  Gov.  Stevens  on  the  3d  of  April,  issued  a  proclamation 
in  the  following  words: 

"  Whereas,  In  the  prosecution  of  the  Indian  war,  circumstances 
have  existed  affording  such  grave  cause  of  suspicion,  that 
certain  evil  disposed  persons  of  Pierce  county  have  given  aid  and 
comfort  to  the  enemy,  as  that  they  have  been  placed  under  arrest, 
and  ordered  to  be  tried  by  a  military  commission:  Jind  whereas, 
efforts  are  now  being  made  to  withdraw,  by  civil  process,  these 
persons  from  the  purview  of  the  said  commission. 

"  Therefore,  as  the  war  is  now  being  actively  prosecuted 
throughout  nearly  the  whole  of  the  said  count},  and  great  injury 
to  the  public,  and  the  plans  of  the  campaign  be  frustrated,  if  the 
alleged  designs  of  these  persons  be  not  arrested,  I,  Isaac  I.  Stevens, 
Governor  of  the  Territory  of  Washington,  do  hereby  proclaim 
MARTIAL  LAW  over  the  said  county  of  Pierce  and  do  by  these 
presents,  suspend  for  the  time  being  and  till  further  notice,  the 
functions  of  all  ci^jU^ficers  in  said  county. 


(    21     ) 

"  Given  under  my  hand  at  Olympia,  this  third  day  of  April, 
eighteen  hundred  and  fifty-six,  and  the  year  of  Independence  of 
the  United  States  the  eightieth. 

"  ISAAC  I.  STEVENS." 

This  document  it  will  be  observed,  alleges  no  other  motive, 
than  that  -the  persons  so  arrested,  without  warrant,  and  by  the 
sole  authority  of  military  force,  were  about  to  sue  out  the  great 
writ  of  right,  to  relieve  themselves  from  illegal  confinement. 

It  is  to  be  observed,  that  there  was  at  this  time  in  the  county 
of  Pierce,  three  companies  of  United  States  troops,  under  com- 
mand of  a  veteran  and  energetic  officer.  There  were  also  one  or 
more  volunteer  companies,  engaged  in  scouting;  the  Indians  had 
been  driven  from  the  settlements,  to  take  refuge  in  the  woods, 
and  if  any  danger  had  ever  existed,  of  communication  between 
these  persons  and  the  enemy,  it  had  ceased. 

Following  upon  the  heels  of  this  extraordinary  document, 
which  was  without  seal  and  without  attestation,  which  found  no 
other  publication  than  the  transmission  of  written  copies  to  a  few 
military  officers,  the  persons  so  charged  were  taken  once  more 
from  the  county  of  Pierce,  and  removed  by  a  military  guard  to 
Olympia,  out  of  the  district  where  martial  law  had  been  pro- 
claimed. Yet  notwithstanding  this  removal  of  the  suspected  par- 
ties, the  proclamation  was  continued  in  existence,  and  the  volun- 
teer officers  directed  to  enforce  it.  ., 

After  a  few  days  some  of  the  persons  so  arrested,  were  permit- 
ted to  return  on  their  parole  to  Steilacoom,  while  the  others  were, 
and  are  still  in  custody  at  the  seat  of  government,  and,  as  is 
reported  and  believed  are  to  be  tried  by  a  military  commission  of 
volunteer  officers,  to  be  held  in  Pierce  county,  on  a  charge  of  trea- 
son against  the  United  States. 

The  United  States  Judge,  assigned  to  this  judicial  district,  being 
detained  at  home  by  severe  illness,  at  the  time  when  by  law  the 
term  of  the  District  Court  was  to  be  held,  the  Hon.  Edward 
Lander,  Chief  Justice  of  this  territory,  who  resides  in  the  adjoin- 
ing district,  at  the  special  written  request  of  Hon.  Judge  Cheno- 
weth,  undertook  to  hold  said  court,  and  on  Monday  the  5th  of 
May  inst,  arrived  at  Steilacoom,  and  opened  the  court  in  due 
form.  Having  been  informed,  however,  on  his  way  to  the  court 
by  Lieut.  CoL  B.  F.  Shaw,  commanding  a  volunteer  force  under 
authority  of  the  Governor  of  this  territory,  that  if  he  attempted 
to  hold  said  court,  he  would  be  forcibly  prevented,  Judge  Lan- 
der, in  order  to  prevent  a  collision  between  the  executive  and 
judicial  authority,  suggested  that  he  would  simply  open  and 
adjourn  the  court  until  Wednesday,  that  the  Governor  might  be 
advised  to  withdraw  his  proclamation. 


(    22    ) 

About  three  days  previous  to  opening  court,  Col.  Shaw,  com- 
manding the  volunteer  forces,  who  had  received  written  instruc- 
tions from  Gov.  Stevens  to  enforce  martial  law  until  further 
orders,  being  directed  at  the  same  time  to  inform  him  immediately 
if  in  his  opinion  it  was  no  longer  necessary,  had  written  by 
express  to  the  Governor,  stating  that  no  occasion  existed  in  the 
county  for  its  continuance,  informing  him  that  important  business 
was  to  be  transacted  before  the  court  and  recommended  that  in 
consequence,  the  proclamation  be  abrogated.  Judge  Lander  now 
himself  wrote  to  Governor  Stevens,  informing  him  of  the  course 
he  had  taken ;  that  there  were  important  causes  to  be  tried  before 
the  court,  one  of  which,  the  suit  of  the  U.  S.  vs.  The  Former  Col- 
lector of  Puget  Sound,  ought  to  be  tried;  that  there  was  immi- 
nent danger  of  a  collision  between  the  civil  authorities  and  the 
military,  and  recommending  that  martial  law  be  at  once  abrogated, 
especially  as  the  present  condition  of  the  county  seemed  not  to 
require  it. 

In  reply,  Governor  Stevens  on  the  6th  inst.,  while  declining  to 
withdraw  his  proclamation,  suggested  that  Judge  Lander  adjourn 
his  court  to  the  first  Monday  in  June,  and  informed  him  that  he 
Lad  examined  the  law,  and  found  no  difficulty  in  his  adjourning 
from  any  time  to  the  next  term  of  court. 

Upon  the  receipt  of  this  information,  Judge  Lander,  having 
done  his  duty  as  a  citizen  in  endeavoring  to  prevent  the  expected 
collision,  proceeded  to  fulfil  those  of  his  judicial  office  by  opening 
court  at  the  appointed  time,  accompanied  by  the  Clerk,  U.  S. 
Deputy  Marshal  and  Sheriff;  he  went  to  the  court  house,  opened 
the  court  by  proclamation  in  usual  form,  and  caused  the  Grand 
Jury  to  be  impanneled  and  sworn.  During  this  time  a  company 
of  volunteers,  (many  of  them  citizens  of  Oregon,  although  enrolled 
in  this  territory,)  drawn  from  Clark  county  on  the  Columbia  river, 
entered  the  court  room  with  loaded  rifles  and  drew  up  without 
the  bar ;  another  company  was  kept  in  reserve  without,  to  assist 
them  if  necessary.  Judge  Lander  then  directed  the  deputy  Mar- 
shal to  prevent  the  entry  of  any  armed  men  within  the  bar,  but 
the  commanding  officer  having  announced  that  he  acted  under 
orders  from  Governor  Stevens,  directed  his  men  to  arrest  the  Judge 
and  Clerk.  In  obedience  to  that  order  they  entered  the  bar,  the 
deputy  Marshal  being  unable  to  prevent  it,  and  arrested  the  Judge 
in  his  seat ;  the-Judge  stating  that  he  only  succumbed  to  force, 
and  declined  calling  upon  the  posse  comitatus,  because  he  wished 
to  avoid  bloodshed.  Judge  Lander  and  the  Clerk,  J.  M.  Chap- 
man, were  then  removed  by  the  military  from  the  court  house, 
arfd  on  the  same  day  taken  out  of  the  county  and  carried  to 


(    23    ) 

Olyrapia.     The  records  of  the  court,  which  were  at  first  seized, 
were  subsequently  returned  to  the  deputy  clerk. 

During  this  time  the  citizens  present,  though  manifesting  a  deep 
feeling  of  indignation  at  the  transaction,  refrained  from  any  disor- 
derly or  violent  acts.  The  conduct  of  Judge  Lander  was,  through- 
out, dignified,  firm  and  worthy  of  his  high  position,  and  .was,  we 
are  satisfied,  dictated  only  by  a  strict  sense  of  duty. 

Upon  these  facts  the  committee  report  the  following  resolutions : 

Resolved,  That  we  look  upon  the  act  this  day  perpetrated  by 
an  armed  force  under  the  authority  of  Gov.  I.  I.  Stevens,  in 
arresting  the  Judge  and  Clerk  of  this  judicial  district,  as  an  out- 
rage, which,  if  tamely  submitted  to,  would  be  entirely  subversive 
of  our  liberties. 

Resolved,  That  as  members  of  the  bar,  we  solemnly  protest 
against  this  assumption  of  power  by  the  Executive — that  the  doc- 
trines of  our  profession  teach  us  that  there  is  no  warrant  for  such 
a  procedure — that  the  course  of-  the  Executive  is  without  a  pre- 
cedent in  law  or  justice,  and  that  it  is  a  violation  of  every  princi- 
ple of  constitutional  privilege  and  liberty. 

Resolved,  That  the  proclamation  of  Gov.  Stevens  suspending 
the  writ  of  habeas  corpus,  was  an  improper  exercise  of  authority 
and  a  usurpation  unheard  of  in  the  history  of  our  country — that 
the  right  of  habeas  corpus  is  one  of  those  dearest  to  our  people,' ' 
the  right  more  powerfully  protected  by  the  National  Constitution 
than  any  other,  its  suspension  being  an  exercise  of  authority  only 
conferred  upon  Congress  with  extreme  restriction  and  not  inherent 
in  any  officer  in  our  national  confederacy. 

Resolved,  That  the  Governor's  proclamation  in  showing  that 
certain  parties  were  arrested  on  a  charge  of  treason,  in  itself 
shows  the  necessity  of  a  court  of  law  for  the  trial  of  such  prison- 
ers— a  military  commission  or  court  martial  being  incompetent  to 
try  men  charged  with  such  offences. 

Resolved,  That  the  peaceable  manner  of  the  citizens  of  Pierce 
county,  in  submitting  quietly  and  without  resistance  to  the  out- 
rages this  day  inflicted  upon  them,  shows  conclusively,  that  no 
necessity  exists  for  martial  law,  no  exigency  require?  it,  no  pub- 
lic necessity  invokes  its  aid. 

Resolved,  That  the  judiciary  of  our  country  is  the  palladium 
of  our  best  rights,  that  its  protection  from  outrage,  is  one  of  the  first 
duties  of  a  public  officer,  its  subversion  a  most  despotic  assump- 
tion of  authority,  that  it  is  a  separate  branch  of  our  institutions, 
independent  of  and  not  subservient  to  the  Executive,  and  that  the 
act  of  Gov.  Stevens  this  day  consummated,  is  a  violent  outrage 
upon  law,  and  upon  the  rights  of  this  people. 

Resolved,  That  we  unanimously  tender  to  Chief  Justice  Lander 


(    24    ) 

our  sympathies  on  this  trying  occasion ;  that  his  manly  course  in 
holding  the  court  until  surrounded  by  an  armed  posse,  and 
forcibly  removed  from  the  bench,  merits  our  thanks :  to  him,  to 
the  Deputy  U.  S.  Marshal,  and  to  the  Clerk,  we  tender  our  thanks 
for  their  zealous  effort  to  protect  the  court  house  from  invasion, 
and  to  maintain  the  dignity  of  the  bench. 

The  report  and  resolutions  were  unanimously  adopted,  and  on 
motion,  the  secretary  of  the  meeting  was  instructed  to  forward  a 
copy  of  the  same  to  the  President  of  the  United  States,  our  Dele- 
gate in  Congress,  the  members  of  the  Committees  on  Judiciary 
and  Territories,  of  both  Houses  of  Congress. 

On  motion,  it  was  resolved,  that  the  members  of  the  bar  par- 
ticipating in  this  meeting,  express  their  concurrence  by  appending 
their  signatures  to  these  proceedings. 

W.  H.  WALLACE,  ch'n,  B.  F.  KENDALL, 

GEORGE  GIBBS,  sec.,  WILLIAM  C.  PEASE, 

ELWOOD  EVANS,  E.  O.  MURDEN, 

C.  C.  HEWITT,  H.  A.  GOLDSBOROUGH. 
FRANK  CLARK, 


,3-y 


MASS  MEETING. 


A  meeting  of  the  citizens  of  Pierce  county,  Washington  Ter- 
ritory, was  held  at  the  court  house,  in  Steilacoom,  on  the  seventh 
of  May,  1856,  to  lake  into  consideration  the  outrage  committed 
by  the  Executive  of  this  territory,  upon  the  civil  rights  of  its 
citizens.  Thomas  M.  Chambers,  Esq.,  was  called  to  the  chair. 
E.  Schroter  was  chosen  secretary,  and  E.  M.  Meeker  assistant 
secretary. 

On  motion,  W.  H.  Wallace  spoke  at  some  length,  stating  the 
object  of  the  meeting  to  be  the  consideration  of  the  outrage  com- 
mitted upon  the  civil  rights  of  the  people  of  this  territory,  by 
the  violent  and  illegal  seizure  of  the  Chief  Justice  and  the  Clerk 
of  the  court  of  this  territory,  by  the  orders  of  the  Executive. 

On  motion  of  J.  M.  Bachelder,  George  Gibbs,  Esq.,  also  stated 
in  a  brief  and  forcible  manner  his  views  on  the  same  subject. 

On  motion,  the  chair  appointed,  Messrs.  Samuel  McCaw,  R. 
S.  Moore,  Hugh  Patterson,  W.  R.  Downey  and  W.  M.  Kincaid, 
as  a  committee  to  draft  resolutions,  expressive  of  the  sense  of  the 
meeting  on  the  occasion.  The  committee  reported  the  following 
resolutions : 

Whereas,  Isaac  I.  Stevens,  Governor  of  Washington  Territory, 
has  proclaimed  martial  law  over  the  county  of  Pierce  in  said 
territory,  and  has  this  day  by  an  armed  force  interrupted  the 
proceedings  of  the  United  States  District  Court  by  arresting  the 
Judge  and  Clerk  thereof,  while  in  the  legal  discharge  of  the 
duties  imposed  upon  them  by  their  respective  appointments, 
therefore 

Be  it  Resolved,  by  the  citizens  of  Pierce  county,  assembled, 
that  in  declaring  martial  law  over  this  county  in  order  to  suspend 
the  writ  of  habeas  corpus,  the  Governor  has  violated  the  civil 
rights  of  the  citizens,  and  trampled  their  dearest  privileges  under 
foot.  That  while  nearly  all  the  citizens  of  this  county  have 
volunteered  and  served  faithfully  in  this  war  now  being  carried 
on  against  the  Indians,  we  have  seen  no  feeling  manifested,  that 
justified  the  assumption  by  the  Executive  of  all  civil  law,  and  the 
suspension  of  all  legal  protection. 

Resolved,  That  Chief  Justice  Lander,  in  the  discharge  of  his 
official  duties,  has  exhibited  every  disposition  to  avoi^l  any  col- 
lision between  the  Executive  and  Judicial  authorities,  consistent 


(    26    ) 

with  the  position  in  which  he  was  placed  by  the  Executive  of  the 
United  States,  and  his  manly  course  has  won  our  sympathy  and 
regard. 

Resolved)  That  in  the  seizure  of  the  Chief  Justice  of  this  terri- 
tory, while  on  the  bench  in  the  quiet  discharge  of  his  duties,  we 
recognize  a  usurpation  of  authority  unheard  of  in  the  annals  of 
our  free  Republic,  an  indignity  cast  upon  our  courts  of  law,  and 
upon  a  free  people,  ever  holding  themselves  amenable  to  the  civil 
authorities. 

Resolved,  That  the  tyrannical  and  despotic  acts  of  the  Execu- 
tive of  this  territory,  are  such  usurpations  of  law  and  authority 
as  requires  the  interposition  of  the  supreme  authority  of  the 
United  States ;  and  that  the  Secretary  of  this  meeting  be  directed 
to  transmit  copies  of  these  resolutions  to  the  President  of  the 
United  States,  to  our  Delegate  in  Congress,  to  the  Committees 
on  the  Judiciary  and  on  Territories  in  each,  house  of  Congress, 
with  a  request  that  they  will  take  such  action  thereon  as  may 
protect  the  people  of  this  territory  from  future  usurpation,  and  in 
the  exercise  of  their  civil  rights  and  personal  liberties. 

S.  McCAW,  ch'n,  WILLIAM  M.  KINCAID, 

R.  S.  MOORE,  WILLIAM  R.  DOWNEY. 

HUGH  PATTERSON, 

The  resolutions  were  unanimously  adopted  and  the  meeting 
adjourned  without  day. 

THOMAS  M.  CHAMBERS,  ch'n. 

E.    SCHROTER,        )         , 

VI    MEEKER,  (       y 


VINDICATION  OF  GOVERNOR  STEVENS, 

FOR  PROCLAIMING  AND  ENFORCING 

MARTIAL  LAW  IN  PIERCE  COUNTY,  V.  T. 


The  undersigned  has  had  his  attention  called  to  a  circular, 
expressing  the  views  of  the  bar  and  of  the  citizens  of  Pierce 
county  in  regard  to  his  recent  action  as  executive  of  the  territory, 
in  proclaiming  and  enforcing  martial  law  in  Pierce  county. 

At  a  public  meeting  of  the  said  bar  and  of  the  citizens,  the 
course  of  the  undersigned  is  pronounced  despotic  and  unneces- 
sary, and  a  solemn  protest  made  against  it  as  a  most  dangerous 
and  unprecedented  invasion  of  the  rights  or  the  judiciary,  and  as 
an  act  which  called  for  the  prompt  interference  and  action  of  the 
national  government. 

The  views  of  the  said  bar  and  citizens,  as  embodied  in  resolu- 
tions, are  prefaced  by  a  statement  of  the  facts,  going  to  show 
that  there  was  scarcely  even  a  pretence  of  a  cause  for  the  action 
of  the  Executive  in  suspending  the  functions  of  the  court. 

This  contains  not  only  palpable  errors  of  fact,  but  the  whole 
paper  is  highly  colored,  and  is  calculated  to  give  a  wrong  impres- 
sion of  the  actual  condition  of  affairs  in  that  county. 

The  undersigned  deems  it  therefore  due  to  the  vindication  of 
his  own  official  action  to  present  the  reasons  and  facts,  why  in 
his  judgment  he  was  called  upon  by  an  overruling  public  neces- 
sity to  proclaim  and  enforce  martial  law. 

On  the  3d  day  of  April,  1856,  martial  law  was  proclaimed  in 
and  throughout'  Pierce  county  by  the  undersigned,  for  the  rea- 
sons set  forth  in  his  proclamation,  in  these  words : 

"  Whereas,  in  the  prosecution  of  the  Indian  war,  circumstances 
have  existed  affording  such  grave  cause  of  suspicion,  that  cer- 
tain evil  disposed  persons  of  Pierce  county  have  given  aid  and 
comfort  to  the  enemy,  as  that  they  have  been  placed  under  arrest 
and  ordered  to  be  tried  by  a  military  commission :  And  whereas, 
efforts  are  now  being  made  to  withdraw  by  civil  process,  these 
persons  from  the  purview  of  the  said  commission  ; 

"Therefore,  as  the  war  is  now  being  actively  prosecuted  through- 
out nearly  the  whole  of  said  county,  and  great  injury  to  the  pub- 
lic will  result  and  the  plans  of  the  campaign  be  frustrated  if  the 
alleged  designs  of  these  persons  be  not  averted,  &c.  &c." 


(    23    ) 

What  was  the  condition  of  the  territory  and  of  Pierce  county 
at  the  time  of  issuing  that  proclamation,  and  what  had  been  its 
condition  for  months  previously  ? 

An  Indian  war  had  been  raging,  where  neither  age,  sex  or 
condition  had  been  spared,  whole  families  had  been  inhumanly 
massacred,  alarm  and  consternation  pervaded  the  whole  territory. 
The  settlers  of  the  territory  were  in  a  state  of  seige,  families 
living  in  block-houses  with  a  few  men,  and  a  majority  of  the  citi- 
zens in  arms,  actively  pursuing  the  enemy  in  order  to  end  the 
war. 

There  was,  however,  an  exception  as  regards  "certain  evil 
disposed  persons"  of  Pierce  county.  They  remained  in  security 
on  their  claims,  receiving  the  visits  of  the  hostiles,  furnishing 
them  with  provisions,  giving  them  information,  acting  as  their 
spies,  and  in  every  way  furnishing  them  aid  and  comfort.  These 
persons  lived  on  the  outskirts  of  the  settlements,  in  positions 
where  the  Indians  had  easy  access  to  them,  and  on  the  line  where 
were  the  depots  of  the  military  operations,  and  which  was  the 
base  of  the  military  movements. 

There  is  grave  cause  of  belief  not  only  that  these  persons  fra- 
ternized with  the  hostile^,  but  that  they  were  the  main  original 
cause  of  the  war,  and  that  at  a  meeting  last  Christmas,  they 
determined  to  keep  up  the  war,  confident  that  they  would  be 
gainers  by  it. 

All  these  are  matters  of  public  notoriety,  and  have  been  for 
many  months.  The  attention  of  the  undersigned  was  called  to 
it,  immediately  on  his  return,  by  acting  Governor  Mason,  who 
expressed  the  judgment,  that  at  least  they  should  be  at  once 
ordered  in,  and  removed  from  the  theatre  of  active  operations. 

His  attention  was  afterwards  called  to  it  by  that  "  veteran  and 
energetic"  officer,  Lieutenant  Col.  Casey,  commanding  the  mili- 
tary district  of  Euget  Sound,  and  who  had  been  informed  by  an 
Indian  prisoner  from  Leschi's  camp,  that  the  movements  of  the 
troops  had  been  communicated  to  Leschi  by  one  of  these  "  evil 
disposed  persons." 

The  undersigned  was  unwilling  to  resort  to  harsh  measures 
unless  an  imperious  public  necessity  demanded  it,  and  he  limited 
his  action  to  calling  the  attention  of  the  military  to  those  men, 
and  to  direct  that  they  be  carefully  watched. 

The  murders  of  White  and  Northcraft  decided  what  was  his 
duty  in  the  emergency.  These  murderers  had  their  hiding  places 
in  the  Nisqually  bottom,  and  drew  supplies  from  these  "evil 
disposed  persons."  They  were  met  and  greeted  by  them  in 
friendship,  with  the  blood  yet  on  their  hands. 

The  undersigned  accordingly  determined  to  order  them  in  as  a 


(    29     ) 

preliminary  step,  and  to  execute  this  duty,  he  secured  the  services 
of  a  most  prudent  and  efficient  man,  Isaac  W.  Smith,  Esq.,  the 
acting  Secretary  of  the  Territory. 

The  order  was  executed  with  kindness  and  moderation.  Several 
days  were  allowed  to  take  away  their  effects.  They  had  the 
choice  of  residence,  Olympia,  Ft.  Nisqually,  or  Steilacoorn,  and 
arrangements  were  made  to  furnish  them  with  provisions. 

So  great  was  the  public  indignation  at  this  time,  that  it  was  an 
indispensable  measure  of  precaution,  in  order  to  protect  the  lives 
of  these  persons  from  the  justice  of  an  outraged  community. 

The  arrest  of  these"  eviTdisposed  persons"  had  the  most  happy 
effect  on  the  friendly  Indians,  who  believed  and  knew  that  they 
had  stirred  up  the  war  and  confederated  with  the  hostiles.  The 
friendly  Indians  began  to  have  confidence  in  an  authority  which 
treated  all  enemies  as  enemies,  even  though  some  had  the  skins 
of  white  men. 

In  defiance  of  these  orders,  these  settlers  returned  to  their 
claims,  and  re-established  intercourse  with  the  Indians.  The 
military  officers  sent  them  in,  stating  that  they  had  acted  as  spies 
and  had  paralyzed  their  operations. 

Accordingly,  they  were  sent  to  the  station  at  Steilacoora  under 
charges,  and  Lt.  Col.  Casey  received  them. 

It  may  be  asked  here,  how  was  it  that  these  men  were  able  to 
keep  up  intercourse  with  the  hostiles  under  the  circumstances. 

These  men  have  Indian  wives  and  families,  who  have  connex- 
ions in  the  hostile  bands,  fathers,  brothers,  and  other  near  rela- 
tives, and  so  far  as  the  undersigned  is  informed,  they  sympathize 
with  them  in  the  war.  These  "evil  disposed  persons"  are 
mostly  the  retired  servants  of  the  foreign  corporations  in  our 
midst,  and  they  have  a  deadly  antipathy  to  the  dominant— that 
is  the  American  power  here. 

In  connection  with  these  reasons  of  public  necessity  for  pro- 
claiming martial  law,  it  will  be  pertinent  to  correct  some  of  the 
mis-statements  of  the  circular, 

It  is  not  true  that  Lt.  Col.  Casey  refused  to  receive  the  prison- 
ers. He  did  receive  them,  but  when  the  writ  of  habeits  corpus 
was  about  to  be  issued,  an  1  the  undersigned  in  consequence  pro- 
claimed martial  law,  he  asked  to  be  relieved  of  their  charge, 
doubting  whether  the  proclamation  could  relieve  him  from  the 
obligation  of  obeying  the  requisitions  of  the  civil  authority. 

Nor  is  it  true,  as  stated  in  the  circular,  that  all  the  persons 
under  charges  were  at  Olympia  ;  a  portion  were  in  Steilacoom, 
and  all  the  remaining  persons  ordered  in  were  either  at  Steila- 
coom, or  Ft.  Nisqually,  within  the  limits  of  Pierce  county. 

Nor  is  it  true,  as  stated  in  the  circular,  that  the  Indians  have 
been  so  far  subdued,  as  that  these  persons  could  not  communi- 


(    30    ) 

cate  with  them.  The  hostiles  have  infested  the  Nisqually  bot- 
tom \vithin  the  last  fortnight,  and  they  could  have  access  to  these 
settlers  without  much  difficulty,  whatever  were  the  number  of 
troops  operating  Against  them,  unless  each  of  these  persons  wa« 
under  a  constant  guard,  and  his  family  under  guard  also. 

These  facts  are  well  known  to  all  persons  acquainted  with  the 
topography  of  the  country,  and  the  situation  of  the  claims  of 
these  persons. 

Nor  is  it  true  that  the  proclamation  was  sent  only  to  a  few 
military  officers.  It  was  posted  up  publicly  at  Steilacoom,  and 
was  known  to  every  citizen  of  the  county. 

When  the  undersigned  learned  that  a  writ  of  habeus  corpus 
was  about  to  issue  to  free  these  "evil  disposed  persons"  from  the 
power  of  the  military,  he  determined  to  meet  it  by  the  proclama- 
tion of  martial  law. 

The  writ  of  habeus  corpus  could  not  only  be  issued  in  favor  of 
the  persons  in  confinement  at  the  station  near  Steilacoom,  but 
also  in  favor  of  those  on  parole  at  Nisqually,  Steilacoom  and 
Olympia.  The  result  would  have  been  to  paralyze  the  military 
in  their  exertions  to  end  the  war,  and  to  send  into  their  midst  a 
band  of  Indian  spies  and  sympathizers.  There  would  have  been 
at  once  a  conflict  between  them,  and  lives  would  have  been  lost. 

It  is  true  that  since  the  proclamation  of  martial  law  a  great 
change  for  the  better  has  taken  place  in  the  condition  of  the  war. 
Through  the  vigorous  action  of  all  the  troops,  regulars  and  volun- 
teers, the  Indians  have  been  repeatedly  struck,  many  have  been 
killed  and  taken  prisoners,  and  the  hope  is  indulged  that  in  a  few 
weeks  the  war  may  be  ended. 

Yet  every  reflecting  man  must  see  that  this  is  the  critical  period 
of  the  war,  when  it  is  to  be  determined  whether  the  war  can 
soon  be  ended,  or  whether  the  contest  is  to  be  continued  another 
year.  Within  the  last  fortnight,  houses  and  barns  have  been 
burned  in  the  county  of  Thurston.  The  Indians  have  announced 
their  determination  to  lay  waste  the  settlements.  Those  east  of 
the  Cascades  have  declared  they  would  transfer  the  war  to  the 
Sound,  a  measure  to  be  apprehended  in  view  of  the  known  fact 
that  they  have  had  the  services  of  one  band  of  sixty  men,  com- 
manded by  the  son  of  the  Yakima  chief,  Owhi.  It  is  no  time  for 
the  nefarious  practices  of  Indian  spies  and  sympathizers. 

At  this  critical  stage,  therefore,  the  undersigned  learned  with 
great  surprise  that  the  court  was  to  be  held  by  Chief  Justice 
Lander :  and  he  was  the  more  astonished  at  the  reasons  given 
by  the  Chief  Justice  in  a  letter  from  him  to  the  undersigned, 
which  is  referred  to  in  the  circular. 

The  undersigned  had  given,  as  the  circular  states,  orders  to 


(    31    ) 

Lieut.  Gol.  Shaw  to  examine  the "  condition  of  things,  and  to 
advise  him  of  the  earliest  practicable  period  it  would  be  safe  to 
revoke  martial  law. 

The  report  of  Col.  Shaw  was,  that  it  was  indispensably  neces- 
sary to  enforce  martial  law.  A  letter  from  him  will  accompany 
this  'paper,  giving  his  reasons  therefor. 

The  reasons  of  public  necessity  for  holding  the  court,  as  set 
forth  in  the  letter  of  Chief  Justice  Lander  and  in  the  circular, 
though  they  do  not  touch  the  principle  of  the  case,  need  to  *>e 
referred  to  as  illustrative  of  the  spirit  of  the  whole  transaction. 
It  is  said  that  one  of  the  cases  was  a  suit  of  the  United  States 
vs.  The  Former  Collector  of  Puget  Sound,  and  that  it  ought  to 
be  tried.  Now  this  case  was  originally  brought  before  the 
courts  of  Thurston  county,  and  a  change  of  venue  was  had  to 
Pierce  county,  in  Judge  Chenoweth's  district,  on  sworn  affida- 
vits that  Chief  Justice  Lander  was  prejudiced  and  would  not 
try  the  case  fairly.  The  other  most  important  case  was 
changed  from  Thurston  to  Pierce  for  the  same  reason. 

As  to  the  danger  of  collision  which  is  referred  to,  it  may  be 
said  that  the  event  showed  no  such  danger.  The  armed  force 
was  small.  A  great  portion  of  the  citizens  of  Pierce  county  are 
in  the  field  against  the  enemy,  and  are  well  advised  of  the 
necessity  of  the  step  taken  by  the  executive. 
.  The  undersigned  did  unquestionably  suggest  to  Chief  Justice 
Lander  the  adjourning  of  the  court  till  June,  at  which  time  it 
was  believed  the  necessity  for  martial  law  would  Jiave  passed 
away,  and  he  did  venture  the  expression  of  the  opinion  that  the 
power  thus  to  adjourn  the  court  was  fairly  to  be  implied  from 
the  wording  of  the  statute. 

The- undersigned  having  come  to  the  conclusion  that  martial 
law  was  indispensable  to  protect  the  lives  of  the  citizens,  for 
the  reasons  set  forth  in  this 'paper,  determined  to  enforce  it  by 
the  arrest  of  the  Judge  and  Clerk,  which  was  done  with  modera- 
tion and  decorum  by  Lieut.  Col.  Shaw. 

It  is  simply  a  question  as  to  whether  the  executive  has  the 
power,  in  carrying  on  the  war,  to  take  a  summary  course  with 
a  dangerous  band  of  emissaries,  who  have  been  the  confederates 
of  the  Indians  throughout,  and  by  their  exertions  and  sympathy 
can  render,  to  a  great  extent,  the  military  operations  abortive. 
It  is  a  question,  as  to  wether  the  military  power,  or  public  com- 
mittees of  the  citizens  without  law,  as  in  California,  shall  see 
that  justice  is  done  in  the  case. 

And  he  solemnly  appeals  to  the  same  tribunals  before  which 
he  has  been  arraigned .  in  the  circular,  in  vindication  of  his 
course,  being  assured  that  it  ought  and  will  be  sustained  'as  an 


(    32    ) 

imperious  necessity  growing  out  of  an  almost  unexampled  con- 
dition of  things. 

ISAAC  I.  STEVENS, 
Governor  Territory  of  Washington. 
Olympia,  May  10,  1856. 

HEAD  QUARTERS,  W.  T.  VOLUNTEERS, 

Olympia,  W.  T.,  May  Wtk,  1856. 
Gov.  I.  I.  STEVENS, 

Commander -in-Chief  Volunteer  Forces. 

SIR  : — I  see  by  a  printed  circular  issued  at  Steilacoom  on  the 
7th  inst.,  that  the  following  statement  is  given  as  having  been 
made  by  me : 

"About  three  days  previous  to  opening  court,  Col.  Shaw 
commanding  the  volunteer  forces,  who  had  received  written 
instructions  from  Gov.  Stevens  to  enforce  martial  law,  until 
further  orders ;  being  directed  at  the  same  time  to  inform  him 
immediately,  if  in  his  opinion  it  would  be  no  longer  necessary, 
had  written  by  express  to  the  Governor,  stating  that  no  occa- 
sion -existed  in  the  cpunty  for  its  continuance — informing  him 
that  important  business  would  be  before  the  court,  and  recom- 
mended that  in  consequence  the  proclamation  be  abrogated." 

The  reason  that  led  the  committee  to  make  the  statement  is, 
that  several  days  previous  to  the  setting  of  the  court  above 
referred  torGeo.  Gibbs,  one  of  the  members  of  the  bar,  came  to 
me  and  desired  me  to  write  to  you,  stating  that  there  was 
important  business  to  come  before  the  court. '  Upon  his  state- 
ment, I  did  preface  a  note  to  you,  stating  that  martial  law  could 
be  dispensed  with. 

But  upon  inquiry,  I  was  convinced  that  there  was  a  strong 
desire  to  arrest  the  prisoners  which  you  had  summoned  before 
a  military  commission  for  trial,  and  being  satisfied  that  if  mar- 
tial law  was  not  enforced,  and  the  prisoners  tried  before  a  mili- 
tary commission,  that  great  injury  would  result  to  the  public 
service,  and  the  confidence  of  my  troops  destroyed,  in  conse- 
quence of  men-being  at  large,  who  men  believe  to  be  the  worst 
enemies  to  American  citizens,  and  the  progress  of  the  war. 

I  therefore  concluded,  that  to  serve  the  public  good,  martial 
law  should  be  enforced,  even  if  it  should  be  to  the  incon- 
venience of  a  few  citizens  who  had  business  before  the  court, 
and  did  not  send  the  note  first  written,  recommending  that  mar- 
tial law  be  revoked,  but  recommending  that  it  be  enforced. 
I  am,  sir,  very  respectfully, 

Your  most  obedient, 

B.  F.  SHAW. 
Lieut.  Col.  Com.  Right  Wing  W.  T.  Vol. 


